Judging Rehnquist`s Court

Conservative Tilt Seems Less Than Expected

July 03, 1988|By Joseph R. Tybor and Glen Elsasser. Joseph R. Tybor is The Tribune`s legal affairs writer. Glen Elsasser is a member of The Tribune`s Washington Bureau.

WASHINGTON — The current term of the U.S. Supreme Court, which ended its public sessions last week, established the Rehnquist court.

The session, which began one justice short last October amid political turmoil over the thwarted nominations of Robert Bork and Douglas Ginsburg, was highlighted by the moderation of William Rehnquist and his emergence into the role as chief justice.

As an associate justice for 14 years, Rehnquist was a strident dissenter. He represented the extreme right of the court, whose opinions provided the intellectual underpinnings for many of the Reagan administration`s positions.

But in this, his second term as chief justice, Rehnquist wrote several decisions that were a direct rebuff of the Reagan agenda and made many conservatives shudder. Most notably, Rehnquist wrote that the independent counsel law, enacted by Congress to facilitate investigation of wrongdoing in the executive branch, did not encroach unconstitutionally on presidential powers.

Rehnquist also authored opinions that upheld the right of a homosexual to sue the CIA for firing him; rejected a suit by evangelist Jerry Falwell against Hustler magazine and its publisher, Larry Flynt, for a crude parody of Falwell`s sex life; turned aside challenges to a California rent-control law; and required the Federal Bureau of Prisons to give inmates copies of investigative sentencing reports.

Court observers attribute the rather abrupt change in Rehnquist`s role to his desire as chief justice to control the contours of important decisions. By voting with the majority, Rehnquist has the final say in choosing who writes the opinion in a particular case. Otherwise, the job would fall to Justice William Brennan, who is the senior justice and reigning liberal on the court. ``I think Rehnquist clearly displayed the earmarks of exerting his position as chief justice by throwing his vote into the majority so that he could confine the opinion more narrowly than Brennan would have,`` said Bruce Fein, a former Reagan administration Justice Department official and a frequent conservative adviser and commentator.

Daniel Polsby, a law professor at Northwestern University, describes this new approach by Rehnquist as a form of ``damage control`` so the court would not fall way out of kilter with his underlying conservative philosophy.

As an example, in writing that the homosexual may sue the CIA, Rehnquist did not discuss whether a person`s sexual preference was constitutionally protected, thus prohibiting his firing. Rehnquist limited the opinion to a discussion of whether an act of Congress gave the CIA absolute immunity from suit in firing its employees at will.

Brennan or someone else on the court`s liberal wing might have expressed sympathy or implied that sexual orientation was a protectable right.

``There is no doubt that Rehnquist has a different game to play as chief justice, and it is precisely the need to play that sucessfully that has introduced some oddities in his voting,`` said Polsby. ``He can no longer be on the fringe. If he was 29 years old and as raw as a freshly laid egg, he would really have to do the same thing.

``He has to write some majority opinions. He cannot conscionably get them all, but if he possibly can, he has to write them, because if he doesn`t, then Brennan gets to do it,`` Polsby said.

Such talk is illustrative of a continuing tug-of-war between right and left on the court and points out another stark reality of the current term:

The court is far from molded in the image of Ronald Reagan.

Overall, it may have tilted more to the right since Reagan`s election eight years ago. But even though he appointed three justices and elevated Rehnquist to chief justice, the court has not waged the dramatic ideological counter-revolution Reagan seemed to promise in 1980.

``It wasn`t a conservative court at all,`` Michael McConnell, a law professor at the University of Chicago, said of the latest term. ``There was no sign of particular movement one way or another.``

The term also provided the debut of Justice Anthony Kennedy, who, after the debacle of Bork and Ginsburg, fell heir to the vacancy created by the unexpected retirement a year ago of Justice Lewis Powell. Powell was considered the swing vote on many issues of social importance.

Kennedy, who did not join the court until February, participated in too few decisions to give a true reading of his stance on many of the issues. But he exhibited a strong affinity with the right wing, encouraging conservatives who were uncertain after his nomination and prompting warnings of woe from liberals.

Kennedy cast the crucial vote in a 5-4 decision that created a sweeping new rule severely limiting the liability of defense contractors for injuries caused by faulty equipment design. The case was re-argued after Kennedy took his seat, apparently because the court was deadlocked 4-4 on the issue.